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The Significance of Depp v Heard for the practice of defamation law in Australia

Introduction As undoubtedly one of the most highly publicised and discussed defamation cases of all time, Johnny Depp’s (‘Depp’) civil defamation action against former wife, Amber Heard (‘Heard’), has significance for the practice of defamation law in Australia. Background In December 2018, Heard wrote an op-ed in the Washington Post which ran under the headline, ‘I spoke up against sexual violence—and faced our culture’s wrath. That has to change’. Although the op-ed made no express mention of Depp, Depp alleged that he was nevertheless sufficiently identified by Heard’s mention that two years prior, she had become a ‘public figure representing domestic abuse’. Accordingly, in March 2019, Depp commenced defamation proceedings against Heard by filing in the Fairfax County Circuit Court, in Virginia, USA. The proceedings were filed in Fairfax County because the Washington Post is a newspaper located in Virginia and the online and physical publications of Heard’s op-ed were also taken to have occurred in Virginia. As such, Depp’s cause of action arose in Virginia, and accordingly, the defamation laws of Virginia applied. The proceedings were heard by a seven-member jury which ultimately found that the allegations made by Heard in her 2018 op-ed were false. The jury found in Depp’s favour on all three of his claims relating to specific statements in the 2018 op-ed. As Depp was also able to satisfy the Court that Heard’s op-ed had been published with malice, Depp’s defamation claim was ultimately successful.  Further to this, the jury found that Depp should be awarded $10 million in compensatory damages and $5 million in punitive damages. The judge, however, reduced Depp’s punitive damages award to $350,000 because of a state cap on punitive damages. In the same proceedings, the jury also found in Heard’s favour with respect to her counterclaim that she had been defamed by one of Depp’s lawyers (who had referred to Heard’s allegations as being a hoax). The jury found that Heard should be awarded $2 million.  Defamation law in Australia To succeed in a claim for defamation in Australia, several substantive elements must be proved. Specifically, the party alleging that they have been defamed (ie, the plaintiff) must establish that the matter which they complain of has a defamatory meaning. Second, this defamatory material must identify the plaintiff as the target of its defamatory meaning. Third, the defendant must have communicated (published) the defamatory material through a platform (print, media or speech) to at least one (third) party other than the plaintiff. Finally, excepting the Northern Territory and Western Australia, the publication of the defamatory material must have caused, or be likely to cause, serious harm to the reputation of the aggrieved party.  Further to this, if it is proven that there is no substance of truth to the defamatory materials and the defendant is unable to avail themselves of any defence or legal excuse for making and circulating the defamatory material, the plaintiff will succeed.  With defamation claims in Australia, particularly in Queensland, there is a legislative requirement [...]

2022-07-18T12:51:03+10:00July 18th, 2022|Blog, Defamation|

BINDING FINANCIAL AGREEMENTS – Should you have one?

A “Binding Financial Agreement” (or BFA) is a legal document that allows couples (married or de facto) to put in writing what they would like to happen to their property if their relationship breaks down. They can be entered into before, during, and after a de facto relationship or marriage, and after separation prior to divorce or after divorce for married spouses. Financial Agreements may deal with the division of real and personal property, superannuation, and spousal maintenance. Financial Agreement in Contemplation of a Relationship/Marriage The topic of a Binding Financial Agreement prior to a de facto relationship or marriage commencing may be a sensitive topic. However, for those of us who wish to avoid the Amber Heard/Johnny Depp scenarios of life, it is a conversation worth having. If you are contemplating entering a relationship, de facto or marital, and wish to quarantine particular assets and liabilities that you have brought into the relationship, and plan what is to happen with jointly acquired assets and liabilities, then you may wish to consider contacting us at Salerno Law. Many of our client wish to quarantine assets for the future benefit of children of a previous marriage or relationship, and to leave those assets in their wills or to gift some of those assets to their children during their lifetime. This goal to preserve certain assets from future claim by an intended or current marital or de facto spouse, is achieved by a properly drafted financial agreement. We have probably all heard the American term “Pre Nup” and are aware of the tumultuous nature of celebrity divorces in some American States with “fault-based” divorce systems. A pre-nuptial financial agreement in Australia allows one or both parties to quarantine particular assets brought by them to the relationship, and for each party to agree on which liabilities are the responsibility of which party prior to the commencement of a marriage. Such an agreement may either unilaterally or mutually quarantine assets and liabilities. For example, if Amber had a liability from her veterinarian because her dog was stung by a bee, her new husband might consider having that liability quarantined to her in the prenuptial agreement. Amber might also wish to quarantine ownership of the dog if the parties were to separate or divorce so that she remains the owner. Of course, we are not always talking about the small things, and a prenuptial agreement would address significant assets and liabilities brought into the relationship by each party, as well as the assets and liabilities acquired during the new relationship, whether acquired individually or jointly, and how those items are to be divided in the event of separation or divorce. In this way, Binding Financial Agreements make the separation process more manageable and reduces the economic and emotional stressors that occur in the absence of such an agreement. Binding Financial Agreements are also the only legal document under the Australian Family Law Legal System to fully extinguish spousal maintenance claims from a former spouse, [...]

2022-07-05T11:32:56+10:00July 5th, 2022|Blog, Family Law|

Buying or Selling a Queensland Rent Roll

A common question of employers is, ‘what are my rights when an employee resigns without giving the required notice?’ The answer is that an employer may be entitled to claim a deduction from an employee where minimum notice requirements have not been fulfilled by the resigning employee.

2022-07-05T11:33:38+10:00July 5th, 2022|Blog, Commercial & Corporate|

2022 Changes to the Franchising Code of Conduct

According to a 2019 parliamentary report, the Franchising Code of Conduct (Code) failed to adequately deter non-compliance by franchisors as some large and profitable businesses have been able to absorb penalties as a cost of doing business. In response, penalties under the Code have now increased significantly. From 15 April 2022, new penalties were introduced for specific provisions in the Code, and many existing penalties have doubled or increased. As a franchisor (and a franchisee), it's important that you remain up to date with the Code to stay on top of your rights and obligations. The new penalties The maximum liability for breaches of 7 particular obligations in the Code have increased from $66,600 to: for companies, $10 million,3 times the commercial benefit achieved from the non-compliant behaviour, or 10% of the franchisor's gross turnover (whichever is the highest amount); and for individuals (such as company directors), $500,000. These obligations include: disclosure of materially relevant facts. This is the obligation of a franchisor to notify their franchise network within 14 days of certain things occurring, some of which include a sale of the franchise system, change of their directors/shareholders, change of ownership of their intellectual property, ACCC proceedings against the franchisor, or proceedings made against the franchisor by 10% or 10 franchisees (whichever is lower); and the ban on franchisors restricting or impairing franchisees from forming an association. The other penalty provisions The maximum financial penalties for breaches of all other penalty-attracting obligations havedoubled from 300 penalty units ($66,600) to 600 penalty units (currently $133,200). It must be noted that not all breaches of the Code attract a penalty - the Code sets out which provisions attract penalties, and these include the obligation of the parties to a Franchise Agreement to act in good faith. The list of obligations under the Code attracting penalties has been expanded. Some of the new additions include: the obligation of a franchisor to provide statements of their marketing fund; the prohibition on a franchisor unreasonably withholding consent to the transfer of a Franchise Agreement (i.e.sale of a franchisee's business); and the prohibition on a franchisor terminating a Franchise Agreement because of an unremedied breach. Multiple breaches It is important to note that a separate penalty applies for every single breach. In other words, if a franchisor’s breach affects 10 different franchisees, they will face 10 sets of the same penalty. Information Statements The amendments to the Code have also changed the obligations of a franchisor to provide a copy of the prescribed Information Statement to a prospective franchisee. Instead of providing this within a reasonable time of that person expressing an interest in the franchise, it must now be provided within 7 days, and before formal Disclosure Documents are issued by the franchisor. Franchise Disclosure Register A separate amendment to the Code passed on 1 April 2022 was the requirement for franchisors to create a profile on the newly established Franchise Disclosure Register by 14 November 2022. The Register will be operated by [...]

2022-07-05T11:23:59+10:00July 5th, 2022|Blog, Franchising|

Adoption’s Effect on the Right to Inherit

Historically, an adopted child could only inherit from their biological, and not their adoptive, parents. However, as the laws that govern an individual’s ability to inherit have changed with time, this is no longer the case.  Considering this, two questions concerning an adopted child’s right to inherit arise:  Can an adopted child inherit from their biological parents?  And how can an adopted child fight for inheritance from their biological parents? This article will provide Queensland-specific answers to the above questions. An Overview of the Right to Inherit in Australia as an Adopted Child: As an adopted child, there are two primary considerations involved in determining your rights to inherit: the state or territory where the adoption took place; and the adoption laws that existed in that location at the time the adoption took place. Can an adopted child inherit from their biological parents in Queensland? Yes, but only if they are provided for in their biological parents’ final Will.   However, if they are excluded from the Will, then unfortunately they have no right to make a family provision application to try to obtain adequate provision from that parent.  Applying the above considerations in the Queensland jurisdiction, children adopted in this state on or after 1 August 1965 cannot inherit from their biological parents, meaning that the law only allows an adopted child to inherit from their adoptive parents but not from their biological parents. In short, generally an adopted child cannot inherit from their biological parents in Queensland, if they were adopted on or after 1 August 1965, and excluded from their Will. How the Law Operates: In the eyes of the law (in Succession Law at least), when a child is adopted, they effectively cease being a child of their biological parent(s),  and vice versa with the parent. As such, the adopted child loses their right to inherit from those biological parent(s). Naturally though, the adopted child will immediately garner rights to make a claim against their adopted parents’ estates, as if they were those parents’ biological child.  Summary: An adopted child’s right to inherit is generally determined by the state or territory where their adoption took place, and the adoption laws that existed in that location at the time their adoption.  In Queensland, an adopted child, who has been excluded from their biological parent’s Will has no right to inherit from that deceased estate, and has no legal recourse to fight for provision from it either. Our Services Our team of lawyers provide clear and timely advice and services on all areas of Wills and Estates law Australia-wide. Given that the legislative requirements for the construction and content of Wills, their execution, probate and administration and more changes from jurisdiction to jurisdiction, it is highly beneficial to engage legal experts who are well-versed in these rules and regulations across all areas of Australia. Contact one of our offices today to discuss any legal issues you may have from preparing Wills to challenging them. By Steven Hodgson & Bernadette [...]

2022-07-05T11:24:00+10:00June 30th, 2022|Blog, Wills & Estates|

Can A Parent Exclude A Child From Their Will?

A person can draft a Will however they please – this is called testamentary freedom. Unfortunately, in some families, children and parents drift apart, so when the parents go to exercise their testamentary freedom when preparing their Wills, this can result in the child’s exclusion in the Will. Most people know that the clauses of a Will can be challenged, and there is a commonly held belief that there is a number of things that a Will maker(also known as a testator) can do to prevent any disappointed beneficiaries from making such a challenge. This article will discuss these issues and the options for testators, who find themselves in these difficult situations. Family Provision Applications: Should a child be excluded from their parent’s Will entirely or simply receives less than they expected (and they think that they deserve more), they can make an application to the Court for further or better provision from a testator’s estate after the testator has died. This is called a family provision application and it can be a costly and protracted process, but it can result in a Court essentially rewriting the terms of someone’s Will. However, it should be said that a Court does not lightly consider altering a testator’s testamentary freedom. Preventing a Family Provision Application: As alluded to above, many people believe that they can do things to prevent a family provision application from being made. This usually ranges from adding specific wording to the Will, leaving that child a small provision, or even adding a statutory declaration to the Will explaining the decision to exclude. However, none of these options can definitively stop an eligible beneficiary from making a family provision claim because they have a right to make such an application at law. Nevertheless, in Queensland a testator can consider taking steps with respect to succession planning to try to limit such a claim as much as possible. It is possible for a testator to limit an eligible beneficiary’s family provision claim through some of the examples we listed above, but they can also do what is called ‘Will substitutes’.Will substitutes allow testators to transfer ownership of property that would otherwise comprise their estate to the individuals that they want to inherit, and to do so without breaching Queensland’s family provision laws. Where property is subject to a Will substitute, the testator's ownership of that property transfers to another person either shorty before or upon the testator’s death. This means that this property will not form part of the testator’s estate, effectively reducing its size. Since family provision claims can only be brought against a testator’s estate, an eligible beneficiary cannot use one to try to inherit any property that the testator has disposed of by way of Will substitutes. Testators can reduce the size of their estates through use of the following Will substitutes: joint tenancy; joint bank account; life insurance policy; donationes mortis causa; and mutual will. Summary: A person can exclude an eligible beneficiary (including a [...]

2022-07-05T11:24:00+10:00June 23rd, 2022|Blog, Wills & Estates|

7 Great Tips For Happy Clients in Injury Claims in QLD

1. Explain their right (in motor accident cases) to have treatment costs covered or reimbursed A client can incur thousands of dollars of treatment costs and be a burden on them.  In some claims they are entitled to either have the insurance company pay these directly or reimburse the injured person.  Even a few hundred dollars back can help make the client feel better about their case. 2. Ensure they know their duty to mitigate Most people want to get back on their feet and do their best to resume a normal life.  It pays however to ensure a client is aware that if a medical practitioner has recommended a course of treatment, their refusal to undertake it may be a problem for getting them full damages.  An injured person must also use their best endeavours to replace lost or reduced income as soon as reasonably practicable.  Letting an injured person know from the outset the expectations the law has of them will help minimise nasty credit attacks later in the claim. 3. Disclosure traps – social media A common mistake injured people make with social media like Facebook is to paint the rosiest picture of themselves possible, or even beyond that!  A client needs to know insurance companies and their lawyers will likely inspect their social media profiles, even trying to friend them with fake accounts, to get to see private posting.  A client should not delete existing material.  Warning clients about keeping posts fair and accurate and being consistent in what they put online with what they do and say to those involved in the claim is again important to keep their credit intact. 4. Properly prepared for the settlement conference A client cannot be told what to expect at a conference in the hour before it and be properly ready to handle what can be an extremely stressful event in their life.  Preparation should involve their input into the claim being made for them, full updated instructions and review of all relevant documents, discussion about likely attitude and conduct of the other parties and realistic advice on claim worth and expectations for any settlement.  The worst feeling a lawyer can have is thinking “how could they think their claim was worth that much?” 5. Know their story Following on from 4, a client should not be correcting their lawyer during a conference because their advocate is not being accurate.  It starts from day 1 of meeting the client, and is especially important when putting their claim together. 6. IME/DME – what to expect, do and say Medical examinations would have to rank highly in stressful events during a claim process.  Help your clients by making sure they know where to go, give themselves plenty of time to avoid being late, know what to expect during the examination and how to present themselves. For example, an insurer arranged psychiatric examination can involve giving urine and/or blood tests. Advice on how to present is not coaching, but ensuring [...]

2022-07-05T11:24:01+10:00June 17th, 2022|Blog, Personal Injury|

Do I have a personal injury case?

Personal injury cases in Queensland (Gold Coast & Brisbane included) are subject to rules depending on their type.  People can be injured at work, in a motor accident or away from home (eg in a shopping centre).  We will look at each type of claim to answer the question, do I have a personal injury case in Queensland. Work accident - Statutory claim A worker injured at work (or on a journey to/from work) has a case for statutory compensation.  This compensation covers a portion of their wages (around 80%), reasonable treatment costs and assistance to return to work. The key criteria are “worker”, “injury” and connection to work. A worker will include a volunteer, but excludes people associated with ownership of the employer, such as a director. Injury must meet a medical diagnosis.  For psychiatric injuries, additional criteria is that it cannot be caused by reasonable actions of the employer.  This can be a significant hurdle to overcome. Work – if you are injured on an unbroken journey to or from work you are also likely covered. Exclusions – you cannot deliberately self-inflict the injury and you cannot be injured as a result of disobeying an employer directive. The goal of a statutory compensation claim is to maximise your recovery by quick and effective treatment and have you back working asap.  The sooner you return to work the better your overall recovery.  However, your return to work may need to be managed with a suitable duties plan to ensure you do not re-injure yourself. There is no fault assessment for a statutory claim. At the end of the claim you may be entitled to a further payout for any permanent injury.  You should not accept this payout without carefully considering a common law claim entitlement, as in most cases (under a 20% WRI – work related impairment) accepting the payout cancels your common law claim entitlement. Common law claim If you believe your employer is partly or wholly to blame for the cause of your event and injury, and you feel the statutory claim does not fully cover your losses, you should obtain legal advice about making a common law claim. The basic entitlement rules are: You must lodge your claim within 3 years of the event and injury; You must have had a WorkCover statutory claim accepted, or be entitled to have one accepted; You must have your injuries assessed by WorkCover for a permanent impairment and then receive a Notice of Assessment; and You believe you will be successful in showing fault lies with your employer for causing your injuries. As such claims are complex and can cost a significant amount in legal expenses, a common law claim should only be considered where you have good chances of success and have a viable claim on compensation to cover your risk and cost. EG if you get a lump sum payout offer of $50,000, and legal advice is that you have a weak case worth say $100,000, [...]

2022-07-05T11:24:02+10:00June 12th, 2022|Blog, Personal Injury|

NON-FUNGIBLE TOKENS AS COLLATERAL: Introducing NFTfi

NFTs, otherwise known as non-fungible tokens, have grown in massive popularity and have become part of a billion-dollar market backed by optimistic investors who see an inherent value in acquiring these digital assets. Now, there is a different aspect gaining traction in the digital asset space; asset-backed loans utilising NFTs as collateral. The concept is simple and familiar to conventional asset-backed loans. An NFT holder may want to borrow fiat currency or cryptocurrency without selling their assets. Instead, they visit a website that specialises in linking owners of these highly-valued and popular NFTs with lenders willing to accept their NFT as security for a loan. A lender can either be a centralised cryptocurrency exchange which deals with NFT borrowing or it may be part of a decentralised peer-to-peer network. Borrowers can expect a loan amount of approximately 30% to 50% of the value of the NFT, while interest rates can range between 20% to 80% (depending on the popularity of the NFT). Before we unpack the practice and risks of NFT lending, what is an NFT? What are NFTs? NFTs are digital assets containing identifying information which is recorded in smart contracts. The identifying information makes each NFT unique and one-of-a-kind, meaning they cannot be swapped or replaced by another token and could never be exactly the same. NFTs can also be linked to a specific asset and can be used to prove ownership of digital items, for example ownership of a concert ticket. NFTs have often been used to transform a digital work of art, or another collectible, into a one-of-a-kind, verifiable asset which is easy to trade on a blockchain (i.e. the Bored Ape Yacht Club collection). This is in contrast to a fungible token, such as Bitcoin. Bitcoin can be swapped and replaced. If you send someone one Bitcoin and they send you a different Bitcoin back, you will still have one Bitcoin, subject to the fluctuation in value during the period of the exchange. Introducing NFTfi (and its risks!) Since an NFT is a one-of-a-kind and unique asset, naturally, its commercial value is high (depending on the demand). Some NFTs can be worth an astonishing amount of money, making them near-valuable as security to a loan by a lender. The lending arrangement is traditional; if you default on your loan terms, the lender has recourse to your NFT as a secured asset. This is an inherent risk attached to any loan arrangement. An example of a borrower defaulting under an NFT-backed peer-to-peer loan arrangement took place when a borrower collateralised its "Elevated Deconstructions" NFT worth around US$40,000 against a 3.5 ETH (US$12,000) loan. The borrower defaulted under the loan arrangement and lost the NFT, handing the lender a valuable asset. Within a month, the value of that NFT surged which saw its value explode to US$300,000, approximately a 650% increase! Equally evident is the risk connected with highly volatile NFTs. For example, Jack Dorsey, founder of Twitter, sold his tweet as an NFT for US$2.9 million. [...]

2022-07-05T11:24:03+10:00June 10th, 2022|Blog, Cryptocurrency|
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